My friend @WillSOrtman (new to Twitter!) raised an interesting SCOTUS procedural Q w/ me about a possible stay application in #WAvTrump… /1
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Replying to @danepps
If AMK refers application to full Court, as he almost certainly would, probably at most 4 votes to grant app, so it goes down 4-4. /2
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Replying to @danepps
But if AMK were to just grant stay w/o referring to full Court, then WA would have to go to another Justice to get stay vacated. /3
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Replying to @danepps
Assuming that new application goes to full Court, as I think it would have to, WA would need a majority—not just 4—to vacate the stay. /4
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Replying to @danepps
So there is one scenario in which a stay could issue despite being 4 votes to deny on 8 justice Court. At least I think? /5
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Replying to @danepps
This is very unlikely, IMO, though; would involve real gamesmanship by AMK (not his style) and breach of norms about referral to full Ct. /6
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Replying to @danepps
And I doubt there is any appetite on the Court for this. Optics would be terrible. Still, very interesting to game out the procedural Q. /7
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Replying to @danepps
And I could imagine this strategy being deployed in some other case where stakes were higher and Justices likely more divided. /8
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Replying to @danepps
Also curious if any of the SCOTUS procedure masters on Twitter see a hole in the analysis. If no, very clever thinking by
@WillSOrtman!3 replies 0 retweets 0 likes
Welcome to Twitter! (Also: Please help Will replace the egg!)
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Replying to @chrisgeidner @WillSOrtman
I am already working on that! Just DM’d him about it 5 minutes ago…He’ll get there.
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